If you have two team members that fall out, is it right to discipline them differently?

28.09.2020
If a disagreement between two employees gets too aggressive, should the consequences for them both be the same? Not if the circumstances are not ‘truly parallel’, according to a new ruling by the Employment Appeal Tribunal (EAT).

Two employees had a drunken altercation during a team day out at the races, after the employer had told everyone in advance that they should behave appropriately. The manager conducting the disciplinary proceedings decided that one employee had been violent, and should be fired, while the other had only threatened violence in response, and should be let off with a final written warning.

The one who was fired appealed, but the manager hearing the appeal was having none of it - he said he would have fired both.

The fired employee now took his appeal to the EAT, claiming unfair dismissal on the grounds of inconsistent treatment. The EAT ruled that the main test of fairness was whether there were reasonable grounds for dismissal, not how another employee had been treated. However, they named three situations that could be exceptions:

1. The employee believed they would not be dismissed because another employee had not been dismissed for the same behaviour
2. The inconsistent treatment suggests the real reason for dismissal was something else
3. The inconsistent treatment is in 'truly parallel circumstances', which suggests that if one employee was not dismissed, it was unreasonable to dismiss the other.

In this case, the fired employee claimed that the third situation applied, but the EAT pointed out that the criteria for parallel circumstances were very strict, and might not apply if one employee had been more provoked, was less experienced, or showed remorse when the other didn’t. They ruled that the circumstances of the fight were not truly parallel, and the dismissal was fair.

The short version of all this? It’s legal to discipline employees differently except in exceptional circumstances, such as circumstances that are 'truly parallel’. If in doubt, though, it’s best to get specialist legal advice.
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